U.S. Department of Education and National Council of Department of Education Locals, Council 252, AFGE (Authority decision, July 30, 1987)

Final FLRA decision. The Authority denies AFGE Council 252's exceptions to an arbitration award upholding an employee's 1985 performance appraisal. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

A Department of Education employee grieved her 1985 performance appraisal, claiming it conflicted with the agency's appraisal regulation and the labor agreement. An arbitrator found the appraisal met both sets of requirements and denied the grievance. The union argued that the award violated law and rules, rested on mistaken facts, and exceeded the arbitrator's authority. The Authority found no ground under its arbitration review statute to disturb the award and denied the exceptions.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; appraisal grievance remains denied.
• Key point: The union did not establish a legal defect in the arbitrator's appraisal ruling.

Full text (FLRA public release)

[ v28 p320 ]
28:0320(45)AR

The decision of the Authority follows:

28 FLRA NO. 45

U.S DEPARTMENT OF EDUCATION

Agency

and

NATIONAL COUNCIL OF DEPARTMENT OF
EDUCATION LOCALS, COUNCIL 252, AFGE

Union

Case No. 0-AR-1329

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Thomas M. Phelan filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The grievant filed a grievance which was submitted to arbitration on the issue of whether her 1985 performance appraisal was in accordance with the agency's performance appraisal system regulation and the parties' collective bargaining agreement. The Arbitrator found that the grievant's appraisal was in accordance with the requirements of regulation and the agreement, and he consequently denied the grievance.

III. Discussion

In its exceptions the Union contends that the award is contrary to law, the agency's performance appraisal regulation and the collective bargaining agreement. The Union also contends that the award is based on nonfacts and that the Arbitrator exceeded his authority.

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the statute; that is, that the award is contrary to any law, rule or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations cases. See, for example, Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local Union 85, 27 FLRA No. 108 (1987) (exceptions contending that the award was contrary to law, agency regulations pertaining to performance appraisals, and the collective bargaining agreement provided no basis for finding the award deficient); Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2025, Petersburg, Virginia, 13 FLRA 108 (1983) (contentions that the award was based on nonfacts and that the arbitrator exceeded his authority constituted nothing more than disagreement with the arbitrator's findings of fact and his reasoning and conclusions and provided no basis for finding the award deficient).

Accordingly, the Union's exceptions are denied.
1

Issued, Washington, D.C., July 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 The Union also requested a stay of
the award when it filed its exceptions with the Authority on March 24, 1987. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken.